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TO BE PUBLISHED IN THE OFFICIAL REPORTS
 

OFFICE OF THE ATTORNEY GENERAL
 State of California
 

DANIEL E. LUNGREN
 Attorney General
 

OPINION : 

: No. 93-613 

of : 

: February 17, 1994

DANIEL E. LUNGREN : 

Attorney General : 

: 

ANTHONY S. Da VIGO : 

Deputy Attorney General : 

: 

THE HONORABLE BOB EPPLE, MEMBER OF THE CALIFORNIA ASSEMBLY, 

has requested an opinion on the following question: 

May a school board grant fully paid health and welfare benefits to age 65 to its

former elective members who have served at least 12 years on the board after January 1, 1981? 

CONCLUSION 

A school board may grant fully paid health and welfare benefits to age 65 to its

former elective members who have served at least 12 years on the board after January 1, 1981, if

such benefits are a continuation of a grant made or in effect during the members' respective terms

of office and the benefits are provided to large numbers of the school district's employees. 

ANALYSIS 

The inquiry presented concerns the authority of a school board to provide health and

welfare benefits to its former elective members. We are asked to focus upon certain statutory

prohibitions against public officials having conflicts of interest and certain constitutional

prohibitions against the granting of "extra compensation" to a government officer. We conclude 

generally that a school board has the authority to provide such benefits. 

The granting of health and welfare benefits to present and "retired" members, as well

as to former elective members of a legislative body of a local agency, is expressly authorized by

section 53201 of the Government Code.1 Subdivisions (a) and (b) of section 53201 state: 

1

Hereafter, unidentified section references are to the Government Code. 

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"(a) The legislative body of a local agency, subject to conditions as may be

established by it, may provide for any health and welfare benefits for the benefit of

its officers, employees, retired employees, and retired members of the legislative

body who elect to accept the benefits and who authorize the local agency to deduct

the premiums, dues, or other charges from their compensation, to the extent that the

charges are not covered by payments from funds under the jurisdiction of the local

agency as permitted by Government Code Section 53205. 

"(b) The legislative body of a local agency may also provide for the

continuation of any health and welfare benefits for the benefit of former elective

members of the legislative body who (1) served in office after January 1, 1981, and

whose total service at the time of termination is not less than 12 years, or (2) have

completed one or more terms of office, but less than 12 years, and who agree to and

do pay the full costs of the health and welfare benefits." 

Within the meaning of section 53201, the term "local agency" includes a school district, a 

"legislative body" includes a school board, and "employees" includes members of a school board.

(§ 53200, subds. (a), (c), (e).) 

The present inquiry centers upon the relationship of section 53201 to two statutes and

two provisions of the Constitution. It will thus be assumed for purposes of our discussion that no

issue arises in connection with the conditions or limitations of section 53201 itself. Hence, in 

question are (1) former elective members who have served at least 12 years on a school board after

January 1, 1981, and (2) benefits which are a continuation of a grant made or in effect during the

members' terms of office. Further, pursuant to the express limitations of section 53202.3,2

 it will be 

assumed that the benefits are provided to large numbers of the school district's employees. (See

73 Ops.Cal.Atty.Gen. 296, 300 (1990).) 

With respect to statutory prohibitions against state and local public officials having conflicts

of interest, the primary legislative scheme is the Political Reform Act of 1974 (§§ 81000-91015).

Section 87100 provides the relevant prohibition: 

"No public official at any level of state or local government shall make,

participate in making or in any way attempt to use his official position to influence

a governmental decision in which he knows or has reason to know he has a financial

interest." 

However, excluded from the definition of "income," and hence from consideration as a "financial 

interest" (§ 87103, subd. (c)), is an official's own salary and compensation received from the public

agency (§ 82030, subd. (b)(2); Cal. Code Regs., tit. 2, § 18702.2, subd. (c)(1)). Hence, we need not 

be concerned with the proscription of section 87100 when analyzing the grant of authority contained

in section 53201. 

The other statutory provision requiring examination is section 1090. This statute, 

expressly made applicable to school boards (Ed. Code, § 35233), restricts the authority of a public 

2

Section 53202.3 states: "All plans, policies, or other documents used to effectuate the purposes

of this article shall provide benefits for large numbers of employees. No plan or policy may be

approved . . . unless its issuance or the payment of benefits thereunder is otherwise lawful in this

State. . . ." 

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agency to enter into contracts due to the financial interests of one or more of its members. Section 

1090 states: 

"Members of the Legislature, state, county, district, judicial district, and city

officers or employees shall not be financially interested in any contract made by

them in their official capacity, or by any body or board of which they are members.

. . ." 

As between a general statute such as 1090 and a specific statute such as 53201, the more specific

provisions would prevail in resolving any apparent inconsistencies. (See Old Town Dev. Corp. v. 

Urban Renewal Agency (1967) 249 Cal.App.2d 313, 328-329; 51 Ops.Cal. Atty.Gen. 30, 30-31 

(1968); see also Agricultural Labor Relations Board v. Superior Court (1976) 16 Cal.3d 392, 420.)

Moreover, the Legislature has expressly provided in section 53208: 

"Notwithstanding any statutory limitation upon compensation or statutory

restriction relating to interest in contracts entered into by any local agency, any

member of a legislative body may participate in any plan of health and welfare

benefits permitted by this article [§§ 53200-53210]." 

Section 53201 authorizes the legislative body of a local agency to provide health and welfare

benefits for its members in accordance with prescribed limitations. Obviously, such benefits may

be conferred only by and through the official actions of the members of the board for their own

benefit. Any perceived conflict between section 1090 on the one hand, and section 53201 on the

other, is dispelled by the unequivocal language of section 53208. (See People v. Superior Court

(Hubbard) 230 Cal.App.3d 287, 296; In re Marriage of Dover (1971) Cal.App.3d 675, 678, fn. 3;

73 Ops.Cal.Atty.Gen., supra, 299.)3 

We turn next to the two possible constitutional limitations upon the granting of health

and welfare benefits to former school board members. Article IV, section 17, of the Constitution 

provides: 

"The Legislature has no power to grant, or to authorize a city, county, or

other public body to grant, extra compensation or extra allowance to a public officer,

public employee, or contractor after service has been rendered or a contract has been

entered into and performed in whole or in part, or to authorize the payment of a claim

against the State or a city, county, or other public body under an agreement made

without authority of law." 

Subdivision (a) of section 10 of article XI additionally states: 

"A local government body may not grant extra compensation or extra

allowance to a public officer, public employee, or contractor after service has been

rendered or a contract has been entered into and performed in whole or in part, or pay

a claim under an agreement made without authority of law." 

3

Special statutes such as sections 53201 and 53208 would not take precedence over section

87100, since the Political Reform Act of 1974 was adopted as an initiative measure by a vote of the

people; the latter may only be amended by a vote of the people or as provided in the initiative 

measure. (Cal. Const., art. II, § 10, subd. (c); § 81013.) 

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The employment relationship between a school board member and a school district

is contractual, and the elements of compensation for such an office become contractually vested

upon acceptance of employment. (Cf. Olson v. Cory (1980) 27 Cal.3d 532, 538-539, fn. 3; 73

Ops.Cal.Atty.Gen., supra, 302.) In our 1990 opinion last cited, we addressed a similar issue as that 

presented here: 

"As applied to such a contract, the Constitution is violated where salary

increases are granted in the absence of such a right having been retained by

appropriate provision in the contract. (Cf. Stewart v. Eaves (1927) 84 Cal.App. 312,

319; 53 Ops.Cal.Atty.Gen. 16, 19 (1970).) In the latter opinion it was determined,

in the absence of any such provision, that a school board was prohibited from

granting a salary increase to a certified employee after a contract for a fixed amount

had been entered into and performed in whole or in part. In Johnson v. Rapp (1951)

103 Cal.App.2d 202, on the other hand, it was held that a school board could, at the

end of the first of a four year contract, increase the salary of its school superintendent

for the ensuing year because the contract, although it specified an annual salary,

reserved to the board the power to increase the salary during the term of the contract.

The court found that the salary increase did not violate the Constitution. (Id., at 205; 

see also 33 Ops.Cal.Atty.Gen. 143, 144 (1959); 23 Ops.Cal.Atty.Gen. 271, 274,

(1954); 8 Ops.Cal.Atty.Gen. 146, 147 (1946).) 

"In addition to those provisions expressly contained within a contract, certain

others may be deemed included as a matter of law. It is, for example, a general rule

that all applicable laws and ordinances in existence when an agreement is made,

which laws the parties are presumed to know and to have had in mind, necessarily

enter into the contract and form a part of it, without any stipulation to that effect, as

if they were expressly referred to and incorporated. (Alpha Beta Food Markets v. 

Retail Clerks (1955) 45 Cal.2d 764, 771; Cappelmann v. Young (1946) 73

Cal.App.2d 49, 52.) It has also been held that the rules and regulations of a public

agency in effect at the date of the making or renewal of a contract of employment are

integral parts of it. (Rible v. Hughes (1944) 24 Cal.2d 437, 443.) Hence, we have 

concluded that a school board could, based upon specific statutory sanction (see now

Ed. Code, §§ 45032 and 87806), grant a salary increase to a certified employee after

a contract for a fixed amount had been entered into and partially performed. (53

Ops.Cal.Atty.Gen., supra, 20.) It would follow that if the amount of compensation 

remains uncertain, whether by contract or by law, a subsequent determination or 

adjustment would not constitute extra compensation. Accordingly, we have

observed that extra compensation is compensation over and above that fixed by

contract or by law when the services are rendered. (Mahon v. Board of Education, 

etc. (1902) 171 N.Y. 263, 266, 63 N.E. 1107, 1108; 33 Ops.Cal.Atty.Gen. 143, 145

(1959).) Under that rationale, the only remaining issue would be whether the option

to augment the compensation or benefits of a member were retained as a matter of

law. 

"We have also stated, in any event, that where there is an arrangement either 

contractual or prescribed by law whereby the salary rates for public employees are

not fixed during a period in which further adjustments are contemplated, the

constitutional prohibition against payment of extra compensation does not apply. (47

Ops.Cal.Atty.Gen 61, 62 (1966); 39 Ops.Cal.Atty.Gen. 200, 202 (1962).) In the 

latter opinion, for example, . . . the statutory arrangement provided for salary

increases based on prevailing rates in other public and private employment." (Id., 

at pp. 302-303.) 

4. 93-613
 
Assuming that the benefits in question have not been reserved in an express provision

of a contract, our final inquiry is whether the granting of such benefits may be founded upon a

particular law or "arrangement." Again, section 53208 provides that "any member of a legislative

body may participate in any plan of health and welfare benefits permitted by this article [§§ 53200- 53210]," notwithstanding any other statutory limitation. Under sections 53201 and 53202.3, a 

school board may, subject to such conditions as may be established by it, provide the same health

and welfare benefits for its members and officers as it makes available to large numbers of the

school district's employees. Section 53201 also authorizes a board to provide for the continuation

of such benefits for qualified former elective members. 

In 39 Ops.Cal.Atty.Gen. 200 (1962), we determined that a retroactive adjustment of

state salaries was sanctioned by a statutory arrangement set forth in section 19826. Similarly, for

a school district's employees in their current terms of service, furnishing health and welfare benefits

would be sanctioned under the arrangement authorized by section 53201, subdivision (a). 

In 73 Ops.Cal.Atty.Gen., supra, 304, we noted in connection with a general law city

that "[i]nasmuch as the availability of participation by [city council] members in any such plan is

identified with that of the city's employees, the constraints applicable to members are subject to, but

no more restrictive than, those applicable to such employees." We concluded that the city council

could provide for its members during their current terms of office a prepaid whole life insurance

policy. (Ibid.) 

By logical extension, subdivision (b) of section 53201 would fully warrant the 

continuation of benefits for employees, and consequently for qualified former elective members,

granted during their terms of employment or office. 

It is concluded that a school board may grant fully paid health and welfare benefits

to age 65 to its former elective members who have served at least 12 years on the board after January

1, 1981, if such benefits are a continuation of a grant made or in effect during the members'

respective terms of office and the benefits are provided to large numbers of the school district's

employees. 

* * * * * 

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